NARI RAWAT Vs. DAULAT RAM

JUDGEMENT

(1.) This is a reference from the Local Government under Section 17 of the rules and orders relating to Kumaun division for a ruling on the following point: Whether the Commissioner was right in upsetting the finding of fact of appellate Court in second appeal in face of the provisions of Secs.100, 101 and 102 of the Civil P.C.

(2.) The facts, briefly stated, are that a suit was instituted against one Daulat Ram, who was the petitioner before the Local Government, for recovery of Rs. 318-5-0 due on a promissory note. The Court of first instance, namely the Assistant Collector of Landsdowne, decreed the suit, holding that the plaintiff had proved his case. On appeal by Daulat Ram the Deputy Commissioner of Garhwal dismissed the plaintiff's suit. Plaintiff appealed against the decree of the Deputy Commissioner to the Court of the Commissioner of Kumaun. The learned Commissioner, under the rules framed under Section 6 of the Scheduled Districts Act (1874), exercises the powers and performs the duties of a High Court for the Kumaun Division. He began the judgment by saying that the appeal related to a simple question of fact as to whether Dualat Ram did execute a promissory note or not. It is therefore clear that the only question before the learned Commissioner was a simple question of fact. He, however, came to the conclusion that the promissory note was executed by Daulat Ram and that the amount sued for was due. He decreed the appeal with costs and restored the order of the Court of first instance.

(3.) No objection seems to have been taken by Daulat Ram before the learned Commissioner on the ground that in view of Secs.100 and 101 no appeal lay to the Commissioner. Although ordinarily a question which has not been raised before a Court is not taken into account, but as the question raised by Daulat Ram is a question of law it is immaterial whether he did raise that point or not. Of course it is open to the Loca1 Government under Section 17 to pass any orders that it may consider just.